An employee is dismissed when he or she is informed of the dismissal. However, in certain cases, an employee may resign because of some act or behaviour of the employer that caused the employee distress. Although the termination of the employee was through resignation of the employee, the law still considers it a dismissal at the initiative of the employer because the resignation was "forced" by altered conditions at work.
When the resignation was made under emotional distress and with the employee not even knowing why she was being investigated for misconduct, the employer cannot reasonably accept the resignation as voluntary. Thus, if the employee were to rescind or take back her resignation, the employer cannot claim that it had accepted the resignation. This is illustrated by the case of Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074 (9 March 2018).
An Assistant Nurse was employed at an Aged Care facility. She was a 55-year old refugee who had limited English skills. Whilst at work on 13 November 2016, a co-employee secretly recorded her on his mobile phone. The video showed the Assistant Nurse bantering with a resident. The video went on to show that the Assistant Nurse conversed with another nurse where they laughed at the death of two residents which occurred just before their shift. It also showed that while residents rang for them, the Assistant Nurses continued drinking tea, and ignored the residents' calls.
She was called into a meeting a couple of days later. She was not told what was wrong or if she were in trouble. She was visibly distressed and crying. She was escorted off the premises. While she sat on the footpath outside her workplace, she remembered that she had been offered a six-pack of beer by a resident and she could have been accused of stealing it. She feared being terminated for stealing. She drafted a resignation letter with the help of a co-employee.
She went back inside her workplace and handed in her resignation. Her boss did not accept the resignation letter. She was then called to another meeting to investigate the allegations of misconduct against her which would be conducted a few hours later. She was distressed and crying. Before the meeting commenced, she told her boss that she did not want to participate in the investigation. Her boss told her that if she put in her resignation letter that her resignation was effective after 4 weeks then she would not need to participate in the investigation.
The next day, the assistant nurse received a letter confirming her resignation. She went back to work and wanted to take back her resignation. Her boss told her that he had accepted her resignation and she was no longer an employee. She filed an unfair dismissal claim. She was not shown the video and she was not provided with a letter telling her what misconduct she committed.
Although the employer did not do any overt act of dismissal, the resignation of the employee was forced because of the behaviour of the employer, thus, the termination of the employment can still be considered as having been done at the initiative of the employer.
The resignation of the assistant nurse was made in the "heat of the moment" when she thought she was accused of having stolen beer. At the meeting, she was upset and so the employer could not have reasonably inferred from the circumstances that the employee's resignation was voluntary. The employee was clearly in emotional distress at that time. Thus, her resignation was legally ineffective. The assistant nurse was reinstated to her former position and awarded back pay.
Has your employer acted to frustrate your contract of employment? Were you forced to resign because of your employer's behaviour? Do you want to know if your resignation can be considered as "forced" and thus, the termination of your employer could be considered as a "constructive dismissal?" If you wish to know more, call and speak with any of the Unfair Dismissal lawyers at MKI Legal. We can help you make sense of this.
When the resignation was made under emotional distress and with the employee not even knowing why she was being investigated for misconduct, the employer cannot reasonably accept the resignation as voluntary. Thus, if the employee were to rescind or take back her resignation, the employer cannot claim that it had accepted the resignation. This is illustrated by the case of Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074 (9 March 2018).
An Assistant Nurse was employed at an Aged Care facility. She was a 55-year old refugee who had limited English skills. Whilst at work on 13 November 2016, a co-employee secretly recorded her on his mobile phone. The video showed the Assistant Nurse bantering with a resident. The video went on to show that the Assistant Nurse conversed with another nurse where they laughed at the death of two residents which occurred just before their shift. It also showed that while residents rang for them, the Assistant Nurses continued drinking tea, and ignored the residents' calls.
She was called into a meeting a couple of days later. She was not told what was wrong or if she were in trouble. She was visibly distressed and crying. She was escorted off the premises. While she sat on the footpath outside her workplace, she remembered that she had been offered a six-pack of beer by a resident and she could have been accused of stealing it. She feared being terminated for stealing. She drafted a resignation letter with the help of a co-employee.
She went back inside her workplace and handed in her resignation. Her boss did not accept the resignation letter. She was then called to another meeting to investigate the allegations of misconduct against her which would be conducted a few hours later. She was distressed and crying. Before the meeting commenced, she told her boss that she did not want to participate in the investigation. Her boss told her that if she put in her resignation letter that her resignation was effective after 4 weeks then she would not need to participate in the investigation.
The next day, the assistant nurse received a letter confirming her resignation. She went back to work and wanted to take back her resignation. Her boss told her that he had accepted her resignation and she was no longer an employee. She filed an unfair dismissal claim. She was not shown the video and she was not provided with a letter telling her what misconduct she committed.
Although the employer did not do any overt act of dismissal, the resignation of the employee was forced because of the behaviour of the employer, thus, the termination of the employment can still be considered as having been done at the initiative of the employer.
The resignation of the assistant nurse was made in the "heat of the moment" when she thought she was accused of having stolen beer. At the meeting, she was upset and so the employer could not have reasonably inferred from the circumstances that the employee's resignation was voluntary. The employee was clearly in emotional distress at that time. Thus, her resignation was legally ineffective. The assistant nurse was reinstated to her former position and awarded back pay.
Has your employer acted to frustrate your contract of employment? Were you forced to resign because of your employer's behaviour? Do you want to know if your resignation can be considered as "forced" and thus, the termination of your employer could be considered as a "constructive dismissal?" If you wish to know more, call and speak with any of the Unfair Dismissal lawyers at MKI Legal. We can help you make sense of this.
